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On the Docket’s Preview of January Supreme Court Arguments

The New Year may finally bring some excitement to Court-watchers dissatisfied with the Eight-Justice Supreme Court’s perceived recent avoidance of hot-button controversies. Though the ever-present specter of potential deadlock remains, the Court in January will hear arguments in several high-profile cases that are sure to garner passionate responses from individuals of all political stripes. In some instances, special circumstances have minimized the possibility of a tie in what would likely otherwise be an evenly divided Court. In January 18th’s Ziglar v. Abbasi (formerly Turkman v. Ashcroft), for instance, the Court will consider the latest in a series of challenges by Middle Eastern men that the federal government allegedly rounded-up following the terrorists attacks of September 11, 2001 and detained in brutal conditions without any suspicion of terrorist ties beyond their ethnicity.  A similar claim brought by other detainees picked up in the sweep gave rise to 2009’s Ashcroft v. Iqbal, in which a closely divided Court narrowly held that the detained men’s claim was too speculative to go forward. If the voting patterns in Iqbal hold true, the absence of the late-Justice Scalia would suggest that Abbasi was destined for a 4-4 affirmance of the Second Circuit decision allowing the detainee’s claim to proceed. Both Justice Kagan and Justice Sotomayor are expected to recuse themselves, however, placing the Justices in the Iqbal majority in a position to once again prevail.

Other cases involve unique issues likely to produce votes that belie normal ideological divides. In Lee v. Tam, to be argued the same day as Abbasi, the Court will hear a First Amendment challenge to the prohibition on “disparaging” trademarks recently used to rescind several of the Washington Redskins’ trademark protections. Free speech issues on their own rarely follow typical voting patterns, but the facts of Lee add an additional wrinkle: the trademark application at issue was not filed by a party intent on disparaging an ethnic group, but rather an Asian-American seeking to reclaim a traditional racial slur as a means of empowerment.

Still other cases that may have been legally controversial on first impression have been rendered less so by recent precedent. Lynch v. Dimaya, for example, centers on the attempt of an immigrant convicted of burglary to fight his characterization as a violent criminal and subsequent removal from the country. In a political environment in which the deportation of alien criminals formed a key issue in the recent presidential election, one might expect Dimaya to become a focal point of tension for a sharply divided nation. But the Court struck down language nearly identical to that contained in the challenged law two years ago in an unrelated context, leading some to regard the outcome as a foregone conclusion.

These and other cases being argued this month are detailed below. On the Docket has researched the parties’ court filings, summarizing the factual and procedural history of each so that readers may acquaint themselves with the cases before they are argued. As always, don’t forget to check back when opinions are handed down for in-depth analysis of decisions from many of the most brilliant legal minds in the relevant field!


January 9

Nelson v. Colorado
No. 15-1256; Colo.

One of the most perplexing aspects of our criminal justice system is likely the distinction between “not guilty” and “innocent.” Many lay people find it logically and ethically intuitive that a person who has been acquitted or had her conviction reversed should be in the clear, for—as the adage holds—we are all innocent until proven guilty. The reality is more nuanced, however. Because the stakes of a criminal proceeding are so high, criminal convictions require the Government to prove guilt beyond a reasonable doubt. Often, evidence that does not support this degree of certainty will easily clear the lower bar set for civil penalties, and liability of some sort may still arise from an alleged crime even when the Government fails to obtain a final conviction. The line between civil liability and criminal penalties is also not always as straight forward as one might imagine. In Nelson v. Colorado, for instance, the Court will be called upon to clarify a State’s responsibility to automatically refund fees and penalties paid by a convicted defendant whose conviction is subsequently reversed , as opposed to requiring a separate civil suit for recovery.

In 2005 and 2006 respectively, Shannon Nelson and Louis Alonzo Madden were convicted of unrelated sexual crimes in Colorado. Their sentences included monetary restitution, and the state further levied a series of fees imposed on only convicted defendants. Each was liable to pay several thousand dollars as a result of their convictions, and the State began to collect in both instances. Both defendant’s convictions were reversed in subsequent proceedings, however. Nelson was acquitted after being granted a new trial, and prosecutors decided not to retry Madden’s case. Each defendant moved for a refund of the portion of the fees and penalties they had already paid. After mixed results in lower courts, the Colorado Supreme Court held that the trial courts lacked the authority to refund the money to either defendant. The Colorado legislature had set up the sole scheme for such repayments when it passed the Exoneration Act, the court reasoned, which governs compensation to wrongfully convicted felons for their time in prison. To gain a refund under the Exoneration Act, the defendants would have needed to prove their innocence by clear and convincing evidence in a separate civil suit. The statute of limitations on such a suit had already run in both cases.

Nelson and Madden now argue that the Exoneration Act was intended to cover damages suffered by defendants after a final, wrongful conviction when innocence is discovered years later—not those individuals whose initial convictions are simply reversed through the normal functioning of review procedures. Further, they contend that this unusual requirement for a separate civil action, employed by only Colorado, violates Due Process because it places the burden of proving innocence on the former defendants in a proceeding where there is no right to counsel. This will likely result in many former defendants never recovering, they argue, because the funds at stake are often substantially outweighed by the cost of additional litigation. Accordingly, the risk of wrongfully depriving former defendants of their property is too high to satisfy the test for procedural due process the Supreme Court set forth in Matthews v. Eldridge.

Colorado frames the question differently. The State claims that the former-defendants are seeking a new “fundamental” and “substantive” right to an automatic cash judgement against the State, which it argues is not supported by policy or history. Even if the challenge is viewed as procedural, however, the State argues that it concerns state criminal procedure (notwithstanding the civil nature of actions under the Exoneration Act). Accordingly, the proper standard is not Eldridge, but rather Medina v. California, under which courts only find a due process violation if the procedures violates “fundamental notions of justice deeply rooted in tradition.” Nelson and Madden counter that they are not seeking a cash judgement against the State because the funds they seek does not belong to the State.They want only the return of property that is rightfully theirs. Moreover, they claim the State’s procedures would fail under either standard.

As stated, Colorado is currently the only state to employ this separate civil action requirement to recover penalties paid as a result of a conviction that is subsequently reversed. But there is likely some truth to Nelson and Madden’s claim that many former defendants will not find it worth the cost to litigate under this framework, netting an economic windfall for the State in the long run. In a time of increasingly tight state budgets, it is likely that other states will follow Colorado and adopt similar requirements should the Supreme Court put its stamp of approval on the procedure.

Lewis v. Clarke
No. 15-1500; Conn.

The first expedition of Lewis and Clark began in 1804 near St. Louis and lasted for two years. This expedition of Lewis and Clarke has its roots in Connecticut and began in 2011 – finally making its way to the Supreme Court five years later. Brian and Michelle Lewis were driving on Interstate 95 in Connecticut when their car was struck by another vehicle, driven by William Clarke. The accident occurred in Connecticut, and both the Lewises and Clarke are residents of Connecticut. It’s no surprise, then, that the Lewises would thereafter sue Clarke in Connecticut state court. However, the case is not that simple; Clarke was acting in the scope of his employment as a driver of the Mohegan Tribal Gaming Authority. The Mohegan tribe is an Indian tribe with its own sovereignty.

Sovereign immunity typically means that a sovereign, such as a foreign country, state, or Indian tribe, have a right not to be sued in federal court. States may not necessarily claim that privilege in state court, and a 1979 Supreme Court case, Nevada v. Hall, stated as much. However, the Mohegan Tribe is not a state – it is an Indian tribe. The current interpretation of tribal immunity is such that tribes are presumptively immune from suit in state court and have sovereignty over their territory and members. The Mohegan Tribe has partially waived its immunity, though, and opened itself up to suits against the Mohegan Tribal Gaming Authority in a special Mohegan Gaming Disputes Court.

Clarke was acting in his capacity as an employee of a sovereign – so where does that leave the lawsuit? The Lewises chose to sue Clarke as an individual, meaning that they were seeking damages from his own assets, not those of the sovereign Tribe. The trial court in Connecticut dismissed Clarke’s claim that there was no subject matter jurisdiction because he had immunity through the actions occurring under the scope of his employment for an immune sovereign. The Connecticut Supreme Court however reversed that decision.

Both parties argue before the Federal Supreme Court that the decision will have far-reaching consequences. The Lewises claim that allowing the Connecticut Supreme Court’s decision to stand will result in no remedy for plaintiffs like them – individuals who sue for torts committed by Tribe employees would have to go to a court that has little incentive to find in their favor. Clarke proffers a broader policy-based argument: the Mohegan Tribe has a right to self-government, and allowing suits to continue in state courts (without caps on damages) would result in a “stampede away from Mohegan tribal courts” and undermine their sovereignty.

Tribal sovereignty is different than state sovereignty, and an effective expansion of tribal sovereignty through an affirmation of the Connecticut Court’s decision from an eight-judge Court seems unlikely. Limiting the sovereignty to official actions and policy-related issues might be the direction in which the Court leans, opting not to protect the actions of non-tribe members acting off of reservations under the auspices of sovereign immunity.


January 10

Expressions Hair Design v. Schneiderman
No. 15-1391; 2d. Cir.

New York law prohibits businesses from charging a surcharge to customers who pay for purchases with a credit card. The law allows businesses to give discounts to customers who pay with cash, however. This effectively allows businesses to have two prices for goods and services – permitting businesses to charge more for goods and services purchased with a credit card, but prohibiting businesses from characterizing the difference as a surcharge specifically for a purchase made with a credit card. Hair Expressions Design, along with the other petitioners, challenged this law as a restriction of speech in violation of the First Amendment. The district court ruled in favor of the plaintiffs. New York appealed the decision, however, and the Second Circuit upheld the law by holding that it regulated conduct, not speech.

Looking to bring the challenge to the law to the Supreme Court, the plaintiffs filed a petition for certiorari. The Court granted the petition to decide whether New York’s law banning businesses from charging credit card surcharges unconstitutionally restricts speech communicating price information or simply regulates economic conduct.

Petitioners argue that the law restricts speech because it allows businesses to call the lower price a cash discount, but prohibits them from calling the higher prices a credit card surcharge. This, Petitioners contend, is a regulation of how businesses may communicate price information, not a regulation of how businesses may set prices. Because they see the law as one restricting commercial speech, Petitioners argue that the law must be subject to the Central Hudson test. The law fails this test, according to Petitioners, because it does not directly advance any interest in consumer welfare and it is more broad than necessary to achieve the purported goal of the law—to prevent deception about prices. Additionally, Petitioners argue that the law is unconstitutionally vague because it does not make a clear distinction between a discount, which is allowed, and a surcharge, which is prohibited. This vagueness, they argue, chills speech because it may cause business owners and employees to hesitate to communicate about the permissible price differences.

New York, on the other hand, argues that the law regulates conduct, not speech. Unlike the Petitioners, who view the situation as involving two prices—a higher one and a lower one—New York views the situation as involving three prices: a baseline price, a discounted price lower than the baseline, and a surcharge price higher than the baseline. They see the law as allowing businesses to set the credit card price at or below the baseline, and only prohibiting businesses from setting the credit card price above the baseline price. The law does not prevent businesses from anything other than setting the credit card price above the regular price, argues New York, and sellers are not prevented from communicating information about prices or their views about credit card fees, so the law does not restrict protected speech. Further, even if the law affected speech, New York argues, it would still survive the Central Hudson test because it is a “narrow regulation that directly advances the State’s substantial interests in protecting consumers from unfair profiteering, preventing deceptive and abusive sales tactics, and reducing consumer confusion that harms the economy.” New York alternatively argues that the law would survive under the Zauderer test because it is like a previous federal surcharge law that is no longer in effect. Additionally, New York contends that the law is not vague because the distinction between a discount and a surcharge is clear. They also state that where there is no baseline price and only a cash price and credit card price, the surcharge prohibition would not apply. Other hypothetical scenarios are not enough to cause the law to be invalid for vagueness, the State concludes.

The outcome of this case will certainly affect the Petitioners, as well as other businesses in New York who wish to charge more for credit card purchases and who want to advertise that price increase as a credit card surcharge rather than a cash discount. Additionally, the Petitioners suggest in their brief that if the Court upholds the law, it could cause some businesses to stop offering cash discounts and simply incorporate the credit card price increase into every purchase to avoid the difficulties of expressing that a price difference is a cash discount and not a credit card surcharge. If this happens, consumers could feel the brunt of the burden, having to pay a “surcharge” regardless of whether they use a credit card or cash.

Goodyear Tire & Rubber Co. v. Haeger
No. 15-1406; 9th. Cir.

This case involves a dispute over sanctions that arose after the settlement of a case involving an allegedly defective Goodyear tire. The Respondents initially sued Goodyear following a motor-home accident, claiming that a defect in a Goodyear tire caused the accident. Right before trial, the parties reached a settlement. Over a year after the settlement, however, the Respondents moved for sanctions against Goodyear because during discovery prior to the settlement, the company had not produced the results of certain tests performed on the tire that had allegedly caused the motor-home accident. After finding that Goodyear and its counsel had acted in bad faith by withholding the test results, the district court levied sanctions against Goodyear in the form of attorneys’ fees equaling all the costs the Respondents had incurred after the Respondents had requested all of Goodyear’s test records. The sanctions equaled more than $2.7 million. The district court did not limit the award to the costs arising directly because of the withholding of the test results, explaining that it could not determine exactly which costs arose as a result of Goodyear withholding the test results and which costs would have arisen anyway. On appeal, the Ninth Circuit affirmed the sanctions and did not impose a requirement that the amount of sanctions be limited to costs arising directly from the sanctionable conduct. After granting Goodyear’s petition for certiorari, the question the Supreme Court faces is whether compensatory civil sanctions levied under a court’s inherent authority must be limited to harm directly caused by sanctionable conduct when a court does not afford the sanctioned parties criminal due process protections.

At the Supreme Court, Goodyear argues that the amount of sanctions should be vacated and that sanctions should be limited by a causation requirement. First, it argues that separation of powers principles and protection against judicial overreach necessitates limiting judicial actions taken under a court’s inherent authority to that which is necessary and proportionate to conduct that gives rise to the action. It also argues that the American Rule of litigation costs—which generally does not allow a victorious party to win attorneys’ fees—requires a limitation on a court’s ability to award attorneys’ fees as sanctions under its inherent authority. Though Congress may alter the American Rule, court’s should be hesitant to do so, they continue. In addition, it argues that the Federal Rules of Civil Procedure detail the rules regarding sanctions and attorneys’ fees, and that a court generally should not go outside of those Rules to impose sanctions under its inherent authority. Discussing precedent, Goodyear then argued that the Court in a previous case had limited sanctions through a causation requirement in a similar context, and that a case that the Ninth Circuit interpreted as removing the causation limitation regarding sanctions did not actually remove the limitation. Finally, Goodyear noted that imposing a causation limitations to attorneys’ fee sanctions levied under a court’s inherent authority would be consistent with the causation limitation in other sources of law, including Rule 11 attorneys’ fee sanctions, attorneys’ fee remedies under 28 U.S.C. § 1927 for bad faith conduct, and attorneys’ fee sanctions under discovery rules.

The Respondents argue that the district court did, in fact, limit the sanctions to harm caused by Goodyear’s sanctionable conduct, but they claim that the court found that the misconduct was greater than the way Goodyear portrays it and caused more harm than Goodyear admits. They argue that the district court’s finding that Goodyear’s misconduct affected the entire litigation supports the conclusion that nearly all of the litigation expenses were caused by Goodyear’s misconduct. Further, they point out that the court found that the parties would have been more likely to settle the case earlier had Goodyear disclosed the test results, explaining that this supports the idea that the extended litigation—and fees resulting therefrom—were caused by Goodyear’s withholding of the results. Respondents also argue that Goodyear seeks to require—on top of a causation limitation—that a court find a direct link between each litigation charge and a specific instance of sanctionable conduct, but that precedent does not support such a direct causation requirement. Such a requirement, they maintain, would result in burdensome litigation undertaken to connect each instance of misconduct with particular litigation expenses. This would be a bad result in itself, but Respondents also point out that it could cause judges to decline to sanction bad-faith conduct for fear of having to engage in such a detailed endeavor. Further, they contend that the negative consequences of a direct causation requirement do not outweigh its potential benefits because litigants who are given sanctions for bad-faith conduct are already protected in multiple ways from unfair sanctions.

The outcome of this case could have a big impact on litigants in federal courts across the country. As this case exemplifies, attorneys’ fees awards can be incredibly high, and imposing a more stringent causation requirement on such awards could cut future awards down. Additionally, a more strict requirement could cost litigants more money during litigation because, as the Respondents pointed out, it could require lengthy and costly litigation to decide which costs were caused by what conduct. Such litigation would also affect courts, requiring them to add detailed and potentially intensive litigation to their already crowded dockets.

January 11

Endrew F. v. Douglas County School District
No. 15-827; 10th Cir.

Every parent wants what’s best for their children, especially when it comes to education. Public schools can be an excellent source of education for all children, and are cheaper than the private school alternatives. What would you do, though, if your child had special needs? If your child started banging his head against a desk and ripping his clothes off because of his autism? Could a public school provide an education plan sufficient to help your child learn and develop?

The parents of Endrew F. (“Drew”) did not believe that Douglas County Schools were sufficiently educating their son. The Individuals with Disabilities Act (“IDEA”) requires that public schools provide “free, appropriate public education” for children with special needs. Part of the way in which school districts meet this standard is through Individual Education Plans (“IEPs”). Drew’s IEP entering the fifth grade included many of the same goals and methodologies that had been listed on his IEP for years prior. His parents, who chose not to be named in the case, were not satisfied that the school was  meeting Drew’s educational needs. Drew’s parents pulled him out of public school and enrolled him in the Firefly Autism House – a private school where they saw marked progress, both educationally and socially.

Drew’s parents sued for reimbursement of the costs to send him to Firefly. Under IDEA, parents of a disabled student can seek reimbursement for tuition and related expenses if a public school does not provide a certain educational benefit to the child. What level of educational benefit the public school must meet is at the heart of this dispute.

The administrative law judge determined that Drew had made “some academic progress” in public school and therefore the school had provided him with a “free, appropriate public education” as required by IDEA. The district court and Tenth Circuit affirmed the administrative law judge’s finding. The Tenth Circuit reasoned that schools must  provide only “some educational benefit” – a standard defined as de minimis. Using this standard, the court determined that Drew’s fifth grade proposed IEP was “substantively adequate” and therefore met the level of a free, appropriate public education.

The family, supported by the federal government, argues that the level of benefits must rise to a level of more than de minimis. Citing the Court’s most recent (albeit from 1982) decision concerning public school access for disabled students, Board of Education v. Rowley, the federal government says that the states must ensure that the access to public education is meaningful – and requiring just a de minimis level of benefits does not satisfy that requirement.

The school district also cites Rowley, but for an opposite interpretation. The district claims that Rowley determined that IDEA did not dictate what level of education a student must be granted. Furthermore, the school district contends, a finding in favor of the plaintiffs would entangle courts in case-by-case determinations they are not prepared to make to determine what level of educational access is sufficient.

Going outside of the plain meaning of the statute, there are powerful arguments on both sides. Drew’s family has the argument of congressional intent: over 100 members of Congress have filed an amicus brief noting that the de minimis level is below that which was intended by Congress. The school district correctly notes that there is a floodgates problem which could overwhelm the courts and deplete already limited public education funding because of an onslaught of litigation sure to result if schools have to prove a higher level of educational access. Which side will prevail? Parents, teachers, and IEP administrators across the country are watching.

January 17

Lynch v. Dimaya
No. 15-1498; 9th Cir.

What do you think of as a crime of violence? Certain crimes prevalent in pop-culture immediately come to mind: murder, battery, robbery (larceny with the threat of force). But what about burglary? Burglary of a garage or uninhabited house? Maybe it’s too vague to be fair to deport someone for a crime of violence. That is the argument maintained by James Garcia Dimaya, a citizen of the Philippines who has lived in the United States as a lawful permanent resident since 1992. Dimaya was convicted for two incidents: robbing a garage and an uninhabited home.

The Immigration and Nationality Act provides for the deportation of an alien if he commits an aggravated felony. An aggravated felony is further defined to include a crime of violence. A crime of violence, in turn, is defined in 18 U.S.C. §16(b) as “any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.” This definition is incorporated into the Immigration and Nationality Act.

This language bears a remarkable resemblance to the definition of crime of violence included in the Armed Career Criminal Act, which is a crime that “otherwise involves conduct that presents a serious potential risk of physical injury to another.” This definition was held to be unconstitutionally vague by the Court in 2015. The doctrine of vagueness dictates that criminal laws must specifically state what conduct is prohibited. This principle is centered around due process; if a statute is too vague, how can someone know whether his conduct is punishable or not? Prosecuting someone based on a law that is too vague is unfair because the person who conducted himself in a certain way was not necessarily on notice that his conduct was prohibited.

Dimaya’s argument is fairly straightforward: after the Court’s 2015 decision that the language of the Armed Career Criminal Act was unconstitutionally vague, the remarkably similar language in the Immigration and Nationality Act is also too vague. This argument was accepted by the Ninth Circuit below, and it has been adopted by several other circuits as well. The government counters by asserting that this case is civil in nature, and therefore the vagueness standard is different; even if the language would not be acceptable in criminal cases, it is sufficiently specific in a civil case.

Striking down that provision of the Act would halt Dimaya’s deportation proceedings. Even if the Justices side with the government, however, and determine that the language incorporated into the Immigration and Nationality Act isn’t too vague, Dimaya will still have a chance to remain in the United States. In reaching a conclusion about vagueness, the Ninth Circuit did not decide whether or not the kind of burglary of which Dimaya was convicted actually constitutes a “crime of violence.” Immigration lawyers are waiting to see what result this case will have on the statute by which all lawful aliens gain residency in this country. Mr. Dimaya is waiting to see if he can continue to call this country in which he has lived for twenty-five years his home.

Midland Funding, LLC v. Johnson
No. 16-348; 11th Cir.

Aleida Johnson owed a debt of almost $2,000 to a credit card company. Midland Funding purchased that debt in 2003, but did not seek to enforce it. The statute of limitations for collecting unpaid debt in Alabama is six years. When Johnson filed for bankruptcy in 2014, however, Midland Funding filed a proof of claim – a notification that Midland, as a creditor, was seeking to obtain funds from the person declaring bankruptcy. Ms. Johnson objected to the claim, and the bankruptcy judge agreed with her. She then sued Midland under the Fair Debt Collection Practices Act (“FDCPA”), a law that in part penalizes debt collectors when they act outside of the scope of debt collection laws. Midland’s defense was simple: the later-enacted Bankruptcy Code, which establishes a system for creditor repayment in instances of bankruptcy, precludes the application of the FDCPA.

The district court ruled that Midland’s actions violated the FDCPA, but they could not be penalized under the FDCPA because of the Bankruptcy Code. This result would have left Midland’s claim against Johnson as rejected but also precluded Johnson’s FDCPA case. The Eleventh Circuit agreed with the district court’s first finding, that Midland’s actions violated the FDCPA, but also said that the FDCPA could be applied during bankruptcy proceedings. This finding that the laws can coexist resurrected Johnson’s claim against Midland.

The Supreme Court now faces both interrelated questions on this claim: does the FDCPA prevent – and therefore punish – creditors from filing proofs of claim after the statute of limitations has run? If so, how does the U.S. Bankruptcy Code come into play – does it preclude or allow for such an FDCPA application in bankruptcy proceedings? The legal protections of bankrupt consumers are at stake in this non-commercial bankruptcy case.

Johnson argues that the Eleventh Circuit was correct in holding that actions that would be subject to the FDCPA outside of bankruptcy are still subject to it during bankruptcy. She also proffers that Midland’s claim that the Bankruptcy Code implicitly repealed the FDCPA is incorrect because such repeals must be established through clear text. Midland counters by citing precedent that establishes the fact that the Bankruptcy Code allows for otherwise time-barred debt collections, and therefore their claim against Johnson does not violate the FDCPA. Furthermore, Midland contends that the Bankruptcy Code should preclude the application of the FDCPA because of similar cases where the Bankruptcy Code did not allow for consumer-protection laws.

Johnson welcomed the Court’s insight and did not oppose Midland’s petition for certiorari. The federal government has filed an amicus brief supporting Johnson: the government urges the Court to agree with both findings of the Eleventh Circuit. Trade groups, however, warn that such a conclusion could result in creditors losing an ability to file claims against debtors in bankruptcy, which could in turn diminish the industry’s effectiveness and societal value. The Bankruptcy Code, Midland and its supporters argue, is already ripe with protections against unfair practices, and the added burden of being subject to the FDCPA would create substantial problems. The resolve of the circuit split by the Court will serve to harmonize the disparity between bankruptcy and consumer-protection laws.

January 18

Lee v. Tam
No. 15-1293; Fed. Cir.

Attempting to reappropriate a traditionally derogatory term, Asian American Simon Shiao Tam formed a band and decided to name the band “The Slants.” When Tam attempted to register the name as a trademark, however, his application was refused by the Patent and Trademark Office (“PTO”) because the PTO claimed that the name disparaged “persons of Asian descent.” Despite Tam’s non-disparaging motive behind his choice of name, the Trademark Trial and Appeal Board (“TTAB”) affirmed the PTO’s refusal to register the name, citing in part the fact that a large part of the group to which the band’s name could be taken to refer found the name objectionable.

Tam then appealed to the Federal Circuit, arguing that the TTAB erred in finding that his band’s name is disparaging and arguing that § 1052(a) violates the First Amendment and is unconstitutionally vague. The Federal Circuit affirmed the TTAB’s decision regarding the disparaging nature of the name and rejected Tam’s First Amendment and vagueness arguments. Hearing the case en banc, however, the Federal Circuit vacated the TTAB’s decision and remanded the case to the TTAB, agreeing that the band’s name is disparaging within the meaning of § 1052(a), but holding that § 1052(a) violates the First Amendment as a viewpoint-based restriction on speech. The government filed a petition for certiorari, which the Supreme Court granted. The question before the Supreme Court is whether § 1052(a) is facially invalid under the First Amendment.

Among multiple arguments, the government argues that § 1052(a) does not restrict speech, and moreover is not a viewpoint-based restriction of speech, so it should not be subject to strict scrutiny and is not facially invalid. The government explains that the refusal to register the mark does not prevent Tam from being able to use the name for his band. It merely prevents Tam from enjoying the various benefits of registration. Additionally, the government argues that § 1052(a) is a criteria used to decide which trademarks to register for government benefits. It does not violate the First Amendment, the government contends, to decide to subsidize some activities and not others, and further, to use criteria like § 1052(a) to decide what to subsidize and what not to subsidize. Furthermore, the government argues that trademarks are commercial speech and thus do not receive the same protections as private speech.  It also argues that trademarks are government speech and that the government has an interest in avoiding the association that would arise between the government and disparaging marks if the government were required to register disparaging marks. The government also argues that it has an interest in encouraging the use of non-disparaging marks.

Arguing that § 1052(a)’s disparagement clause is unconstitutional under the First Amendment, Tam first claims that the provision imposes significant viewpoint-based burdens on speech by allowing “registration of marks that express a positive or neutral view of a person,” while prohibiting “registration of marks that express a negative view” of a person. Additionally, Tam argues that trademark registration is not a government subsidy, government speech, or pure commercial speech, and that even if it was a government subsidy or pure commercial speech, it would still be invalid because it is a viewpoint-based discrimination of speech.

Tam also argues that the disparagement provision does not prevent registration of his band’s name, even if the provision is constitutional. First, he maintains that his band’s name is not disparaging because he chose it to reappropriate a derogatory term. Second, Tam claims that the word “persons” in the provision only includes individuals, not ethnic and racial groups. To support this claim, Tam discusses the history of the Lanham Act that governs trademarks. Finally, Tam argues that the disparagement clause in unconstitutionally vague because the determination of what is disparaging is subjective, the PTO has interpreted the provision non-literally to bar registration of marks that disparage groups and not just individuals, and the PTO has not stated how many people in a group must be offended by a trademark before the mark will be considered disparaging to that group. He claims that this vagueness chills speech because it discourages the use of any trademark that could potentially be found to be disparaging by the PTO, given the high cost of changing trademarks after a product is in the market.

The biggest practical impact of this case will likely be the outcome’s implications for the Washington Redskins. The TTAB cancelled six of the team’s trademark registrations in 2014, and after challenging the cancellations in the Eastern District of Virginia, the team unsuccessfully petitioned the Supreme Court for certiorari. Two of the questions presented in the petition were the vagueness of § 1052(a) and its constitutionality under the First Amendment. If the Court holds in Lee that § 1052(a) is constitutional, the status quo will likely remain for Tam and the Redskins. However, if the Court holds that § 1052(a) in unconstitutional, not only will Tam likely be able to register his band name, but the Redskins will likely be able to reregister their trademarks, which could mean substantial financial benefits for the team.

Ziglar v. Abbasi
No. 15-1358; 2d Cir.

The reverberations of terrorist attacks of September 11, 2001 continue to shape the world’s legal and political discourse. Future generations will undoubtedly scrutinize the manner in which the United States responded to the tragedy, weighing the measures taken to ensure the nation’s security against the core values the country has long professed. Among the most troubling allegations arising from the government’s actions in the wake of the attacks centers on an aggressive program allegedly authorized by then-Attorney General Ashcroft to indiscriminately round-up and detain all of the adult males of Middle Eastern and South Asian descent within the New York Metropolitan area. The program, which was allegedly administered on the sole basis of ethnicity without regard to any actual connection to terrorism, has been the subject of prolonged litigation and gave rise to one of the blockbuster civil procedure cases of our time, 2009’s Ashcroft v. Iqbal. In Iqbal, the Supreme Court’s held that the plaintiffs’ claims against the government officials that had allegedly detained them should be dismissed as implausible, but did not reach the merits of the underlying case. The detained men have not given up, however, and the Court will once again decide if a case based on the program may go forward in Ziglar v. Abbasi (formerly Turkman v. Ashcroft). With two of the most likely sympathetic Justices recused, however, the odds of a more favorable outcome for the men are vanishingly small.

The plaintiff-respondents claim that, following 9/11, federal authorities engaged in an intentional campaign to detain and question all males from Middle-Eastern countries between the ages of 18 and 40 who “came to the attention” of the FBI. Unlike many countries, the United States has no laws allowing for general preventative detention without individualized suspicion – indeed, such measures would likely run afoul of the Fourth Amendment’s prohibition on unreasonable seizures. The detained men allege that the Attorney General instructed the then-extant Immigration and Naturalization Service to round-up every immigration violator who fit the ethnic profile in order to provide a pretext for their detainment. The plaintiff-respondents are non-citizens who were picked up during the sweep, primarily as a result of relatively minor visa violations. They claim that, rather than being put through normal immigration proceedings, they were detained in intentionally harsh conditions in order to “exert maximum pressure” on them to provide any information they had on terrorist activities. The men describe brutal treatment, including near-24-hour solitary confinement in constantly illuminated cells, intentional sleep deprivation, and exposure to the extreme cold, as well as denial of access to hygiene products and religious items. They further allege that they suffered intentionally humiliating random strip searches and constant beatings at the hands of guards who shouted racial and religious slurs, having been falsely informed that the prisoners were connected to the 9/11 attacks.

The inmates first filed suit in 2002, claiming that their singling out for harsh treatment violated the Due Process and Equal Protection Clauses, as well as the Fourth Amendment. After a protracted procedural history, the Second Circuit Court of Appeals held that the detained men’s claims against both Department of Justice officials and the operators of the federal detention center survived a motion to dismiss. The men now face an uphill battle to convince the Supreme Court that their case should not be thrown out.

Perhaps most pressingly, the respondent-plaintiffs must survive the pleading standards that stopped the claims of similarly detained individuals in Iqbal. The Court in Iqbal held that the detainees’ claims were overly speculative and conclusory. The plaintiff-respondents here hope to avoid this pitfall by presenting very specific allegations of events, documented by several internal government reports. The government-petitioners still contend, however, that the claims are speculative and implausible.

The detained men must also show that they have a cause of action to sue. When a more specific law does not exist, courts will often infer a cause of action for damages related to the violation of a protected Constitutional right by a federal official. Courts evaluate whether such an action (commonly termed a Bivensclaim) exists on an individual basis. The Government argues that numerous “special factors” counsel against allowing the plaintiff-respondents a Bivens action here, including the need for unfettered national security decisions during a time of emergency, the separation of powers, and the failure of Congress to provide a remedy to the men in the many intervening years since their suit was first filed. The respondent-plaintiffs counter that Bivens claims have long been established for selective punitive treatment against incarcerated individuals, and no other adequate remedy exists for the violation.

Even should the plaintiff-respondents surpass these first two hurdles, they must overcome the significant barrier of qualified immunity. Government officials are typically immune from suits based on their official conduct unless that conduct unreasonably violated a clearly-established right. Only if a reasonable person in the official’s position would have known that the actions clearly violated the plaintiff-respondent’s Constitutional rights based on prior precedent will personal liability attach.

With such substantial obstacles, the detained men would have a tough case in any event. But both Justice Kagan and Justice Sotomayor have recused themselves from consideration of the case, presumably as a result of prior involvement as Solicitor General and a Second Circuit Judge, respectively. With the potentially sympathetic liberal arm of the Court’s bench operating at a significant handicap, it seems unlikely that the detainees’ claims will advance substantially further than in Iqbal.


This post was authored by The George Washington Law Review Online Editorial Team.

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